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Monday, 25 November 2013

John Maher - Can defamation law keep up with the digital age?

John Maher BL

John Maher BL is a barrister and author of The Law of Defamation. In an article here for the Irish Times (extracted from an address to the UCC Law Society conference 2013, "The Changing Landscape of Media Law") he wrote here:

"Is there any prospect of defamation law operating consistently around the world? We have created a global communications system, but we do not have a global response to its problems. The strong position of freedom of speech in US law and culture contrasts with varying levels of commitment to the same principle elsewhere, even within Europe.

Those who seek to abuse online freedoms can avoid liability in one jurisdiction by operating from another, and the law has yet to address this obvious problem.

Perhaps international co-ordination only happens when countries feel compelled to act together, for example to boost trade or tackle international crime. But the victims of serious online defamation are random and dispersed, and their problems are theirs alone. For now, lawmakers do not feel the need for a co-ordinated response.

Finally, we might consider whether the internet and social media are changing us. Six years ago in the Atlantic magazine Nicholas Carr provocatively asked “Is Google Making Us Stupid?” and bemoaned the decline of his memory, his attention span and his intellectual rigour as he flitted from one thing to the next on the internet. He may have exaggerated, but it is clear that the internet may be changing how we take in information, how we think about one another, and what we are prepared to say about one another.

A remarkable aspect of the recent controversy involving former Conservative Party grandee Alistair McAlpine, falsely linked on Twitter to a child abuse scandal, was that his defamers included the respected columnist George Monbiot, and Sally Bercow, wife of the Speaker of the House of Commons. What impulse drove them, and people like them, to show that they were up to speed on the latest rumours? And if we are creating a world in which people will routinely put immediacy before accuracy, will it be possible for defamation law to hold the line and say: the individual’s reputation is still something worth protecting?

John Maher BL is a barrister and author of The Law of Defamation (Round Hall). This article is extracted from an address to the University College CorkLaw Societyconference 2013, “The Changing Landscape of Media Law”.

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Key cases, documents and articles

In Tamiz v Google [2013] here, the High Court in London found Google was not the publisher of defamatory material posted by someone using its blog facility, the judge suggesting you could not hold the owner of a wall responsible for graffiti sprayed on it by someone else.